On behalf of all of us at Opinio Juris, I want to thank Amos Guiora for taking time to blog with us this past week about his new book, Freedom from Religion. We would also like to thank Paul Cliteur, John Lentz, and Mark Movsesian for guest blogging with us as well and providing such an interesting and informative discussion on religious freedom and national security.

And, of course, thanks to all of you who took time to read the posts (and comment as well!).

I am interested in the issue of “coded language.” As a protestant minister who preaches from sacred texts often using theological language concerning, for example, “sin” “redemption” “judgement,” etc., am I to interpret that this theological language is “coded?” It is, of course, in a way – for it is language that is full of meaning(s) – hence, meaningful. Professor Marcus Borg, author of a great little book The Heart of Christianity writes that the best way to interpret biblical language is metaphorically – rich in multiple meaning; it saves us from narrow literalism.

A good example is Islam is “jihad” – inner jihad, outer jihad, spiritual jihad or military jihad? Christianity has the same issue with “Kingdom of God.”

But my sense is that the esteemed professors are using “coded language” in another way – perhaps I am wrong. I doubt that preachers are using words like “sin” when they really mean “go kill the bastard.” It seems to me that when the imam, rabbi or pastor wants to share with his congregation that, for example, homosexuality is an abomination, he comes right out and says it. So it isn’t “coded” at all – it is as clear as it can be. That is the thing about fundamentalist preachers – there is no irony or “hidden” meanings because there is a word means ONE thing. The issue is not what word is used but what kind of reaction is caused and what kind of action is anticipated. There are many so-called conservative Christians who would argue that the Bible clearly states that homosexuality is an abomination – however, there would be no necessary cause and effect to violence in a direct way. Many churches would use this interpretation for outreach and conversion because they “love the sinner, but hate the sin.”

Furthermore, I am also not sure there is such a clear distinction between religious language and secular language – there is nothing “magic” about the language. What is at stake is how one interprets the language of the sacred text – literally, metaphorically, or whatever. J. Lentz

In response to the previous comments, I very much appreciate the justified concern raised regarding my identification of the danger posed by religious extremists. Prof Movsesian is, of course, correct that non-religious terrorism (the groups he identifies) is also a contemporary reality. However, where we disagree is that I believe the greatest (not only) danger is posed by religious extremists and my proposal addresses that threat. That said, Prof Movsesian is also correct that solely identifying religious extremist speech raises (obviously) important constitutional issues; in that vein, including non-religious extremist speech in the ‘posing a danger’ category is certainly viable.

However, as i previously commented, the present danger is largely posed by religious extremist speech in Houses of Worship. In that vein (in response to Rev Lentz’s comment) I propose law enforcement engage in monitoring and surveilling of a Houses of Worship if information is received that the faith leader is inciting his/her particular congregation to violence; if justified the faith leader can be prosecuted based on the available evidence.

The deep reluctance of law enforcement/prosecutors in the US, Israel, UK and Netherlands (with whom I met while researching the book) is the clearest manifestation of what I previously referred to as the granting of immunity to religious extremists actors. In that vein, I suggest that religious extremist speech that has the ability—in the name of the divine as interpreted by the faith leader—must be defined as ‘unprotected speech’ based on the possibility that an individual in that specific audience might act.

Because many religious extermists speak in ‘code’ –what I believe Prof Borgen refers to as ‘metamorphical speech’—it is incumbent upon law enforcement to develop a sophisticated understanding both of religion and religous speech. Otherwise, it will be extremely difficult to truly understand the message intended by the speaker. What is essential to my proposal is recognizing the extraordinary power of extermist faith leaders in all three monotheistic faiths and the willingness of indiviudals to act on their words.

In the Israeli context, the impact of the ‘pulsa danura’ (see previous comment) issued against Rabin could have been minimized had concrete measures been taken against the Rabbi’s who were openly inciting against Rabin. It is important to note that the speakers were religious extremist faith leaders (not far right secular Israelis as Prof Movsesian suggests in his hypothetical) who clearly had the ability to incite (as they did) members of their community. Similarily, when a fatwa was issued by an imam in the Netherlands against an Islamic politician (for suggesting Islam must come to grips with homosexuality) the threat to that individual was direct and real; the literally unlimited freedom of speech extended to the imam directly threatened the politician (with whom I met the day the fatwa was issued) because of the very real possibility that someone in the imam’s congregation will act in accordance with the ‘religious dictate’. That same principle holds true for child brides in the Fundamental Latter Day Saints Church; underage girls are directly endangered by faith leaders who literally order their marriage to adult males predicated on religious belief (in that vein, a faith leader was convicted of being an accomplice to a rape though the conviction was recently overturned).

It is in response to these examples that I propose acting proactively to minimize the harm caused both to larger society (external) and members of a particular community (internal) by religious extremist actors. As Prof Cliteur correctly suggests religious extremists are intimately connected to divine commands; it is, as Prof Cliteur comments (in his response to Prof Movsesian) that distinction with respect to motivation and the power of the divine as interpreted by extremist faith leaders that distinguishes religious extremist terrorism.

One aspect of Amos’ proposal that I think needs to be emphasized is that he suggests curtailing certain types of speech because of certain hoped-for practical advantages in counter-terrorism. It is, essentially, a utilitarian argument. However, taking his suggestion on its own terms, I am not persuaded that the U.S. undertaking a new policy of curtailing religious speech would in fact enhance security. As Mark Movsesian mentioned in his recent post, I look forward to some concrete examples of how Amos suggests effectuating such a policy. But, based on my current understanding of Amos’s proposal, I think that regulating religious speech in the interest of national security would at best have little impact and at worst may be counterproductive.

The problem of being ineffective comes is due to two independent problems: the problem of secular terrorism and the problem of metaphorical speech.

Mark Movsesian laid out the secular terrorism issue in his two posts and I largely agree with his observations and argument. I would like to underscore that terrorism around the world is just as often (if not more often) wrapped-up in the language of nationalism, race, class, or ethnicity. To target religious speech would be target only part of the overall problem of terrorism. I am as yet unconvinced that this would warrant such a profound incursion into the First Amendment.

Moreover, it is unclear to me that the root cause of much of today’s supposedly religious terrorism is in fact religion. So many of the “foot soldiers” of terrorism are recruited out of slums where there is little sense of hope. Yes, there are also the Mohammed Attas of the world, relatively well-off and willing to murder civilians for a religious cause—but the story of terrorism recruitment is still primarily a story of targeting people (usually adolescent boys) who have little hope for a better future. Desperationis the lifeblood of terrorism; religious speech is often simply a motivational and organizational technique. Strike at religious speech and you have not eradicated the root of terrorism; it will simply continue under one of the secular organizational logics (class, race, nation, etc.) that are used so often.

There is also the problem of metaphorical speech. While issuing a proclamation that someone must be killed is clear enough, what do we make of a cry from a pulpit for “God to rain down his judgment on [some person or people]?” Is that an actual call to violence? What if one asks for “lashes of fire”(to use Amos’s example)? Some might view that as merely metaphorical language. Others may interpret it as an order for a hit. Would Amos suggest an regulating religious speech beyond our current laws concerning incitement? If so, to prohibit metaphorical language that could be interpreted as a call to violence is to give the secular government the role of religious interpreter. This would not only degrade religious speech but place the government in a no-win situation in which it would essentially have to decide which religious speech or metaphor is important to a religion and which is not. The true bad actors can always further hide their intentions in further coded or metaphorical language.

These concerns all make me wonder whether the regulation of religious speech in the interest of national security would be effective. But I am also concerned that it would actually be counter-productive. If terrorist recruiters feed on a sense of grievance, of “otherness,” then we would ratify their arguments by outlawing people simply talking about God or religion in the way that they want. Even if each assessment was on a case-by-case (or metaphor-by-metaphor?)basis, given the risk of misinterpreting a religious tradition that one does not understand well, there is a real risk of over-regulation the U.S. government of Islamic religious speech and possibly “under-regulating” ostensibly Christian speech. Each such slip-up either way could be a public relations bonanza for the al Qaedas of the world. Better, perhaps, to leave theology to the theologians.

I thank Professors Guiora and Cliteur for their thoughtful interventions. As I see it, the basic distinction Prof. Guiora draws is between terrorism motivated by religious convictions – “religious terrorism” – and terrorism motivated by non-religious convictions – “non-religious terrorism.” Despite their arguments, though, I fear I am still not persuaded that this distinction is very helpful.

For instance, Prof. Guiora asserts that we should focus on religious terrorism for a practical reason: although non-religious terrorism was important in the past, terrorism today is of the religious variety. He’s right that much contemporary terrorism is religious in nature, maybe even most. But he minimizes the endurance of non-religious terrorism. I’ve already mentioned the Shining Path in Peru. Other examples include ETA in Spain, N17 and its splinter groups in Greece, the New People’s Army in the Philippines and the Tamil Tigers in Sri Lanka. None of these groups fits within the category of “religious terrorism,” and, while they are not as effective as they were, one can’t dismiss them as unimportant or merely relics. The Tamil Tigers, the group that invented suicide bombing, were defeated by the Sri Lankan military only last year.

As I understand him, Prof. Cliteur agrees with Prof. Guiora that religious terrorism is distinct from non-religious terrorism – and distinctly dangerous – because religion motivates violence in a way non-religion does not. Although important elements of the three monotheistic faiths encourage violence, he writes, atheism and secularism, in themselves, do not. It’s certainly true that some religious ideologies encourage violence, as I said in my last post. But some non-religious ideologies encourage violence as well, at least if one is to judge by the understanding of the movements that espouse them. Besides, does it really make a difference, practically speaking, if a group believes it must eliminate its opponents in order to instantiate God’s rule on earth rather than to achieve a workers’ paradise or a “homeland for our own kind”? In each case, the group is a threat to civil society that must be contained. For this reason, I would prefer a treatment of extremism full-stop, rather than extremism in the name of religion.

Finally, about extreme religious expression. Prof. Guiora gives the chilling example of the rabbis who incited the assassination of Yitzhak Rabin by reciting a pulsa denura outside his home. Prof. Guiora knows much more about the Israeli context than I, but let’s try a thought experiment. Suppose, instead of conducting a religious ritual, a group of ultra-nationalist Israelis gathered outside Rabin’s house with signs depicting him as a traitor and calling for his death. Isn’t it possible that some impressionable person could have been incited by these signs to murder the prime minister? Would that have been any less chilling? Again, what does the religious motive really add?

Perhaps we can discuss Prof. Guiora’s policy prescriptions in more detail in the next go-round. For now, I should just point out that any attempt to single out extreme religious expression, rather than extreme expression itself, would face serious problems under the American Constitution.

It would help me to have a specific scenario of how this would play out. For example – some well known Christian radical fundamentalist preacher (who has been known to call on God’s wrath against some group) gets up in the pulpit one Sunday and says; “I have had a direct revelation from God and today, if you believe, you will go out and kill so-and so. (the preacher names an individual).”

If the FBI had been forewarned would it be illegal (under present statutes) for them to plant agents? Would they be allowed to arrest or at least hold preacher for a time?

Is there really a difference between what you may be calling for in terms of limiting free speech and assembly and what in fact happened with the FLDS or the Hutaree militia?

Thank you to Prof Movsesian, Prof Cliteur and Rev. Lentz for their thoughtful and informed comments in response to my initial posting. With respect to Prof Movsesian’s concern regarding my identification of religious extremism as posing the primary threat today, I would suggest that analysis of contemporary terrorism clearly suggests that religious extremist actors (in all three monotheistic faiths) are, in the main, today’s terrorists. While–as Prod Movsesian correctly suggests—secular terrorism previously presented direct threat to civil society the danger today is posed by religious extremists.

It is for that reason that I propose limiting the freedom of speech of religious extremist faith leaders because of the incitement in which they engage. Yigal Amir’s assassination of then Prime Minister Rabin is but the clearest manifestation of clerical incitement. Rabbi’s who issued a ‘pulsa denura’ (‘lashes of fire’) calling for Rabin’s murder because of the Oslo Peace Process directly incited Amir.

Similar examples of direct incitement abound in other faiths; to that end, Prof Cliteur’s distinction between religious terrorism and secular terrorism is profoundly important because it highlights the fundamental distinction between the two. Religious extremists are motivated by their understanding—largely facilitated by the interpretation of religious texts by faith leaders—of ‘divine command’ (to quote Prof Cliteur) which is distinguishable from secular terrorism.

With respect to Rev Lentz’s comments, addressing incitement/limits of free speech is inherently problematic, whether with respect to religious speech or secular speech. However, because of the ‘clear and present’ danger posed by religious extremist faith leaders the present focus must be on religious extremism. The question—raised by both Prof Movsesian and Rev Lentz–is to what extent does society protect itself. While freedom of speech and freedom are both constitutionally guaranteed they are not absolutes; the question is under what conditions, circumstances, standards and criteria can limits be imposed.

Clearly, because I share many of the concerns raised by the comments, I recommend imposing limits subject to strict scrutiny with an eye to protecting both society and guaranteed rights in the context of the threat posed.

Thanks to Opinio Juris for inviting me to comment on Professor Guiora’s new book. I look forward to the interchange with him and the other participants.

Professor Guiora deserves credit for tackling the very controversial and timely topic of religious terrorism. Much of what he says is thought-provoking. He tries to be fair and avoid “religion-bashing.” He concedes that religion can have beneficial as well as harmful social effects and cautions the state against over-reaching in response to religious speech.

Yet I must disagree with his central assertion that religion constitutes a uniquely dangerous threat to national security and public safety. For example, he writes that “religious extremists are fundamentally, philosophically, and existentially different from secular terrorists for they claim to be acting in the name of the divine.” I don’t know about “philosophically and existentially,” but, practically, there is not much difference between religious and secular terrorism. In the last century, atheist state terrorism murdered many millions and suppressed whole civilizations. Atheist ideology motivated much “non-governmental terrorism” as well, as in Peru (the Shining Path) and Germany (the Red Army Faction). Indeed, in terms of sheer numbers, secular terrorism has been dramatically more successful than its religious counterpart.

It doesn’t seem, then, that religiously-motivated terrorism is qualitatively more virulent than the secular variety. This shouldn’t be a surprise. Terrorism can be motivated by many factors. Some religious beliefs encourage terrorism, but so do some secular ideologies. The key thing is the terrorist psychology: the terrorist’s emotional conviction that his goals, whether in this world or the next, justify violence against the people who oppose him. Society obviously needs to defend itself against such violence and I agree with Professor Guiora that religiously-motivated violence shouldn’t get a free pass. (Who argues that it should?) But focusing on “religious” terrorism distorts the nature of the problem.

Professor Guiora’s assumption that religion is uniquely dangerous also causes him to say some unfortunate things. For example, he states that “society has historically – unjustifiably and blindly – granted religion immunity.” This assertion is not correct. It is not even close to correct. Historically, society has persecuted religious dissent. The freedom that religion enjoys in the West today is the result of centuries of struggle. In many parts of the world, governments continue to suppress religious liberty. A recent Pew study revealed that 70% of the world’s population lives in countries with high or very high levels of restrictions on religious freedom. Even in the United States, believers who seek religious exemptions from generally applicable laws face an uphill battle, and always have. Under the old Sherbert test, courts routinely rejected religion-based claims for exemptions, and the current Smith standard is of course less accommodating. On an objective view of reality, religious communities around the world are more often victims than victimizers, a fact of which the reader of Professor Guiora’s often provocative work might lose sight.

As a pastor of a church I find Professor Guiora’s words both challenging and problematic. Here are four points:

1. Professor Guiora writes, “Society has historically – unjustifiably and blindly – granted religion immunity.” What society? Separating “society” from “religion” is very much a modern issue. Society didn’t grant immunity to anything. Rather, society was shaped by religion and was pretty much identified religiously in the West and in the East until the beginnings of the critical/historical/scientific “Age of Reason” stirrings. In the West it was the Church that granted immunity not the other way around.

2. I don’t know if it is all that helpful to differentiate religious extremism which leads to terror from “secular terrorism.” Terrorism is terrorism. Even secular terrorism is action taken by an individual who – or group that – presumes his/her/their world view is superior to another’s perspective – religious or otherwise. The results of god-less terror is not better or worse that the results of god-full terror.

3. In the 4th paragraph where Prof. Guiora describes the Huratree Christian militia – they were caught before they committed any terrorist act. Doesn’t this show that the system works without changing constitutional law? Their “sacred” right of assembly and speech had to have been compromised to some degree so that the agents could make their arrests, no?

4. It is exactly the “grey” area between action and “over-reach” that suggests we will never get this right. From Nazi Germany to the FBI during the Civil Rights movement, government agents have tried to infiltrate faith communities deemed dangerous to the group in power with horrendous results. It seems to me that religous speech should be treated the same way we treat any other speech: you can’t yell “FIRE” in a crowded theater. We have hate speech laws as well as libel laws. Our “sacred” free speech and assembly have always had limits. This is the best we can do, I believe, without compromising our identity and soul.

Society has historically —unjustifiably and blindly—granted religion immunity. That immunity has been expanded to include religious extremism; doing so, presents an imminent danger to civil society. In many ways the failure to adequately protect society falls squarely on the shoulders of society; the refusal to directly address religious extremists is purely self-imposed. Religious extremists manipulate society’s sensitivities which, in large part, results in unjustifiable acquiescence. As one reader of the book commented “we gotta stop this “kill the infidel” bullcr*p.”

Religious extremism is when the actor believes his or her tenets and principles are infallible and that any action, even violence, taken on behalf of those beliefs is justifed. The action can be directed both at people of other faiths (or those of no faith), as well as members of the same religion who have violated the extremist’s understanding of how their religion is to be practiced. Religious extremists are fundamentally, philosophically and existentially different from secular terrorists for they claim to be acting in the name of the divine.

Disagreement regarding how to respond is welcomed and inevitable; critical is acknowledgment of the threat. Prof Nadine Strossen, in commenting on the book, correctly noted that the fundamental question is “whether legal protections for religious speech and conduct should be reduced in order to counter the threat posed by religiously motivated terrorists.” I am convinced that the answer must be a resounding ‘yes’. While freedom of speech and freedom of religion are sacred, the right to life is similarly sacred.

A short ‘laundry list’ demonstrates the extraordinary danger posed by religious extremism and religious extremists: the attack on American military personnel in FT Hood, Texas by Major Nidal Malik Hasan; Umar Faisal Shahzad’s 42nd Street bombing; Comedy Central’s self-censorship of a South Park episode referencing the Prophet Mohammed in the face of threats by a radical Islamic group; child endangerment (child brides) and abandonment (‘lost boys’) in the Fundamental Church of Latter Day Saints (FLDS) and the burning of mosques in the West Bank by Jewish extremists. Essential to these acts is the role of faith leaders. Their words—and the potentially tragic impact of their carefully chosen, oft-repeated, mantra-like interpretation of religious texts—pose a danger to society..

Whether and how we directly, proactively and fairly, restrict their words is a critical challenge facing the public and decision makers. Religious extremist speech that, articulated by extremist faith leaders in Houses of Worship, incites followers to violence should enjoy a lower standard of protection than other speech. Punishing speakers violence after violence has occurred is both ineffective and does not deter other religious extremists. Therefore, in known cases of religious extremist speech, government—in order to protect larger society (external community) and vulnerable members of an internal community—must act proactively seeking to prevent harm to potential targets of religious extremism.

On the other hand, over-reach is equally dangerous. With respect to religious symbols nowhere is that over-reach more telling than how various European government stumble their way through the veil and burkha issue. While religious extremism justifies proactive measures by government, it is important to avoid over-reaction. The continued debate in Europe with respect to the head-scarf symbolizes over-reaction; the scarf—unlike speech—does not pose a danger to civil society. Legislative efforts in Belgium and France to ban the scarf and burkha would not meet American constitutional law tests regarding void for vagueness and over-breadth. While a cogent and compelling public safety test can be articulated for banning the burkha on public transportation and other public venues, an all-encompassing ban both on the scarf and burkha does not meet rational based balancing tests.

We are very pleased to host for the next three days a discussion of Amos Guiora’s new book, Freedom from Religion: Rights and National Security(Oxford 2009). Amos is probably well known to many readers of this blog, a professor at the University of Utah’s S.J. Quinney College of Law and a retired Lieutenant Colonel from the Israel Defense Forces Judge Advocate General’s Corps, Amos is a frequent writer and commentator on issues of national security and the law of armed conflict. He was also a regular blogger at National Security Advisors.

Amos’ new book has been getting much attention for its provocative argument concerning the interrelationship of religious freedom and national security policy. Between the controversies over the construction of an Islamic cultural center near the Ground Zero site and the proposed burning of the Koran by a conservative Christian pastor, it is hard to think of a more timely or more contentious topic. I will leave to Amos the explication of his argument. Unlike some corners of the blogosphere and cable outlets, we make a real effort at shedding more light than heat and so we have put together a group of thoughtful commentators to guest with us for this symposium.

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